Criminal Procedure Code, 1973 - Second Complaint on the same Facts - filing the second complaint without disclosing the fact of the filing of the first complaint muchless explaining the exceptional circumstances is a sheer abuse of the process of the law.
A second complaint, after the first is dismissed under Section 203 of the Cr.P.C. is normally not maintainable and would be maintainable only in exceptional circumstances. A second complaint on the same facts would be entertained only in exceptional circumstances where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd or unjust.
Facts of the Case
A bare perusal of the earlier complaint and the present one clearly shows that the facts alleged are clearly same, in toto. If such was the state of affairs, the conduct of the Respondent No.2 in filing the second complaint without disclosing the fact of the filing of the first complaint muchless explaining the exceptional circumstances is a sheer abuse of the process of the law. The complaint filed by Respondent No.2 is in fact a second complaint on the same facts which fact was not disclosed to the learned Chief Judicial Magistrate and the impugned order of issuance of process was procured even without making out any exceptional circumstance which could have enabled the learned Chief Judicial Magistrate to comment upon. This being a sheer misuse of the process, the impugned order deserves to be quashed and set aside and the order directing process to be issued needs to be recalled.
CORAM : MANGESH S. PATIL, J.
PRONOUNCED ON : 05.07.2018
CRIMINAL WRIT
PETITION NO . 1465 OF 2017
Machindra Dattatraya Kokate & Others Vs. State of Maharashtra, Through Kotwali Police Station, Ahmednagar, Dist.
Ahmednagar & Another
Mr.
G.K.Thigale (Naik), Advocate for Petitioners Mr. S.P.Deshmukh, APP for
RespondentState Mr. K.D.Bade Patil, Advocate for Respondent No.2
J U D G M E N T
Rule.
Rule
is made returnable forthwith. With the consent of both the sides the matter is
heard finally.
2. In
this proceeding styled as under Article 226 of the Constitution of India read
with Section 482 of the Criminal Procedure Code (herein after referred to as 'Cr.P.C.')
the petitioners who are the original accused from R.T.C. No.272 of 2010 pending
in the Court of learned Chief Judicial Magistrate, Ahmednagar, are impugning
the order passed by the learned Chief Judicial Magistrate on 04.09.2017
directing to issue process against them under Section 204 of the Cr.P.C. for
the offences punishable under Section 420 and 465 of the Indian Penal Code, on
a complaint filed by Respondent No.2 herein.
3. Respondent
No.2 filed a private complaint alleging that there is a trust of which he was a
president on the date of lodging of the complaint. All the petitioners indulged
in forgery and opened different accounts in the name of the trust in Union Bank
of India, allowed the Government grants to be credited in those accounts and withdrew
it without being authorized to function for on behalf of a trust when the trust
already had its own account. Thus by deceiving the bank authorities they have
opened the account and misappropriated the money.
4. The
learned Chief Judicial Magistrate recorded a statement of Respondent No.2 under
verification under Section 200 of the Cr.P.C. and by the impugned order held
that there was substance to the extent of the allegations which constituted
cheating and forgery and directed the process to be issued. He found that there
was substance to show that the petitioners were not the authorized trustees and
still had managed to open the accounts in the name of the trust and allowed the
grants to be entrusted to it and got those credited in these accounts.
According to the learned advocate for the petitioners, there has been a serious
dispute of a civil nature between the petitioners and Respondent No.2. It is
going on before the Charity Commissioner's Office and it would all depend upon
the rights which would be finally determined by the Charity Commissioner
concerned. However without resorting to such civil remedy Respondent No.2 has
been bent upon to harass the petitioners by lodging different complaints with
police or in the criminal court. The foremost circumstances to which the
learned advocate laid emphasis is that, this is a second attempt made by Respondent
No.2 to file the complaint based on the same allegations, without disclosing
the fact to the learned Chief Judicial Magistrate. He would submit that the
very same allegations about opening of the accounts and allowing the funds to
be credited in that account and withdrawing those amounts were levelled by
lodging a complaint in the year 2007. It was a Miscellaneous Criminal
Application No.821 of 2007 wherein Respondent No.2 had arrayed the petitioner Nos.1,
3 and 5 which was filed on 26.11.2007. He would point out that the then
Magistrate had directed investigation into that complaint under Section 156(3)
of Cr.P.C. The police had submitted a negative report on 01.10.2008 and after
going through it the complaint was dismissed on 29.04.2014. The learned
advocate then submitted that a second attempt has been made by filing the
present complaint which is in question now, simply by adding petitioner No.2, 4
and 6 and by keeping the allegations same. The learned advocate would then
submit that though second complaint based on same facts is maintainable, as laid
down in the case of Poonam
Chand Jain & Anr. Vs. Fazru ; [AIR 2005 SC 38], there has to be exceptional
circumstances to entertain the second complaint. Respondent No.2 has neither
brought this fact of filing of the earlier complaint to the notice of the
learned Chief Judicial Magistrate nor has the latter had any opportunity to
examine this aspect of the matter. Thus the impugned order has been obtained by
hiding material facts and for want of such exceptional circumstances, this
being the second complaint, is not maintainable.
5. The
learned APP requested to decide the Writ Petition on its own merits.
6. The
learned advocate for Respondent No.2 submitted that there is no fault in
issuing the process. The
learned Chief Judicial Magistrate has appreciated the facts and circumstances
and has by a reasoned order directed the process to be issued. The order is neither
perverse nor arbitrary so as to enable this Court to invoke the writ
jurisdiction and the Writ Petition may be dismissed.
7. At
the outset it is necessary to note that Respondent No.2 has not filed any
affidavitinreply to counter the averments in the petition. It is trite, as laid
down in the case of Poonam Chand Jain (supra) that a second complaint, after
the first is dismissed under Section 203 of the Cr.P.C. is normally not
maintainable and would be maintainable only in exceptional circumstances. After
considering the earlier pronouncements and particularly by referring to the decisions
in the case of Bindeshwari
Prasad Singh Vs. Kali Singh ; [1977 SCC (Cri.) 33] and Mahesh Chand Vs. B. Janardhan Reddy ; [AIR 2003 (1)
SCC 734], it has
been held that a second complaint on the same facts would be entertained only
in exceptional circumstances where the previous order was passed on an
incomplete record or on a misunderstanding of the nature of the complaint or it
was manifestly absurd or unjust.
8. Right
in the teeth of such a legal position, it was expected of the Respondent No.2
to have explained while lodging the second complaint as to how he was entitled to
file a second complaint being an exceptional case falling in any of the afore
mentioned categories. A bare perusal of the earlier complaint and the present
one clearly shows that the facts alleged are clearly same, in toto. If such was
the state of affairs, the conduct of the Respondent No.2 in filing the second
complaint without disclosing the fact of the filing of the first complaint muchless
explaining the exceptional circumstances is a sheer abuse of the process of the
law. It is also equally important to note that in Criminal Miscellaneous Application
No.821 of 2007 which was the earlier complaint, the learned Magistrate had
specifically concluded that the complainant that is the present Respondent No.2
had never turned up to the Court to dispute the negative report submitted by
police under Section 156 (3) of the Cr.P.C. which was received on 01.10.2008
till the complaint dated 26.04.2010 was ultimately dismissed on 29.04.2014.
Without turning up to Court in that case he apparently allowed the complaint to
be disposed of and has filed this second complaint even before his earlier
complaint was disposed of. The earlier complaint was disposed of by the order
dated 29.04.2014 whereas he had filed this present complaint on 26.04.2010.
9.
To sum up, the complaint filed by Respondent No.2 is in fact a second complaint
on the same facts which fact was not disclosed to the learned Chief Judicial
Magistrate and the impugned order of issuance of process was procured even
without making out any exceptional circumstance which could have enabled the learned
Chief Judicial Magistrate to comment upon. This
being a sheer misuse of the process, the impugned order deserves to be quashed
and set aside and the order directing process to be issued needs to be recalled.
10. The
Writ Petition is allowed.
11. The
rule is made absolute in terms of prayer clause 'B'.
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